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Probate Code - PROB

DIVISION 6. WILLS AND INTESTATE SUCCESSION [6100 - 6806]

  ( Division 6 enacted by Stats. 1990, Ch. 79. )

PART 3. FAMILY PROTECTION [6500 - 6615]

  ( Part 3 enacted by Stats. 1990, Ch. 79. )

CHAPTER 6. Small Estate Set-Aside [6600 - 6615]
  ( Chapter 6 enacted by Stats. 1990, Ch. 79. )

6600.
  

(a) Subject to subdivision (b), for the purposes of this chapter, “decedent’s estate” means all the decedent’s personal property, wherever located, and all the decedent’s real property located in this state.

(b) For the purposes of this chapter:

(1) Any property or interest or lien thereon which, at the time of the decedent’s death, was held by the decedent as a joint tenant, or in which the decedent had a life or other interest terminable upon the decedent’s death, shall be excluded in determining the estate of the decedent or its value.

(2) A multiple-party account to which the decedent was a party at the time of the decedent’s death shall be excluded in determining the estate of the decedent or its value, whether or not all or a portion of the sums on deposit are community property, to the extent that the sums on deposit belong after the death of the decedent to a surviving party, P.O.D. payee, or beneficiary. As used in this paragraph, the terms “multiple-party account,” “party,” “P.O.D. payee,” and “beneficiary” have the meanings given those terms in Article 2 (commencing with Section 5120) of Chapter 1 of Part 2 of Division 5.

(Enacted by Stats. 1990, Ch. 79.)

6601.
  

As used in this chapter, “minor child” means a child of the decedent who was under the age of 18 at the time of the decedent’s death and who survived the decedent.

(Enacted by Stats. 1990, Ch. 79.)

6602.
  

A petition may be filed under this chapter requesting an order setting aside the decedent’s estate to the decedent’s surviving spouse and minor children, or one or more of them, as provided in this chapter, if the net value of the decedent’s estate, over and above all liens and encumbrances at the date of death and over and above the value of any probate homestead interest set apart out of the decedent’s estate under Section 6520, does not exceed twenty thousand dollars ($20,000).

(Enacted by Stats. 1990, Ch. 79.)

6603.
  

The petition shall be filed in the superior court of a county in which the estate of the decedent may be administered.

(Enacted by Stats. 1990, Ch. 79.)

6604.
  

(a) The petition shall allege that this chapter applies and request that an order be made setting aside the estate of the decedent as provided in this chapter.

(b) The petition shall include the following:

(1) If proceedings for administration of the estate are not pending, the facts necessary to determine the county in which the estate of the decedent may be administered.

(2) The name, age, address, and relation to the decedent of each heir and devisee of the decedent, so far as known to the petitioner.

(3) A specific description and estimate of the value of the decedent’s estate and a list of all liens and encumbrances at the date of death.

(4) A specific description and estimate of the value of any of the decedent’s real property located outside this state that passed to the surviving spouse and minor children of the decedent, or any one or more of them, under the will of the decedent or by intestate succession.

(5) A specific description and estimate of the value of any of the decedent’s property described in subdivision (b) of Section 6600 that passed to the surviving spouse and minor children of the decedent, or any one or more of them, upon the death of the decedent.

(6) A designation of any property as to which a probate homestead is set apart out of the decedent’s estate under Section 6520.

(7) A statement of any unpaid liabilities for expenses of the last illness, funeral charges, and expenses of administration.

(8) The requested disposition of the estate of the decedent under this chapter and the considerations that justify the requested disposition.

(Enacted by Stats. 1990, Ch. 79.)

6605.
  

(a) If proceedings for the administration of the estate of the decedent are pending, a petition under this chapter shall be filed in those proceedings without the payment of an additional fee.

(b) If proceedings for the administration of the estate of the decedent have not yet been commenced, a petition under this chapter may be filed concurrently with a petition for the probate of the decedent’s will or for administration of the estate of the decedent, or, if no petition for probate or for administration is being filed, a petition under this chapter may be filed independently.

(c) A petition may be filed under this chapter at any time prior to the entry of the order for final distribution of the estate.

(Enacted by Stats. 1990, Ch. 79.)

6606.
  

(a) A petition may be filed under this chapter by any of the following:

(1) The person named in the will of the decedent as executor.

(2) The surviving spouse of the decedent.

(3) The guardian of a minor child of the decedent.

(4) A child of the decedent who was a minor at the time the decedent died.

(5) The personal representative if a personal representative has been appointed for the decedent’s estate.

(b) The guardian of a minor child of the decedent may file the petition without authorization or approval of the court in which the guardianship proceeding is pending.

(Enacted by Stats. 1990, Ch. 79.)

6607.
  

(a) Where proceedings for the administration of the estate of the decedent are not pending when the petition is filed under this chapter and the petition under this chapter is not joined with a petition for the probate of the decedent’s will or for administration of the estate of the decedent, the petitioner shall give notice of the hearing on the petition as provided in Section 1220 to (1) each person named as executor in the decedent’s will and to (2) each heir or devisee of the decedent, if known to the petitioner. A copy of the petition shall be sent with the notice of hearing to the surviving spouse, each child, and each devisee who is not petitioning.

(b) If the petition under this chapter is filed with a petition for the probate of the decedent’s will or with a petition for administration of the estate of the deceased spouse, notice of the hearing on the petition shall be given to the persons and in the manner prescribed by Section 8003 and shall be included in the notice required by that section.

(c) If proceedings for the administration of the estate of the decedent are pending when the petition is filed under this chapter and the hearing of the petition for probate of the will or administration of the estate of the decedent is set for a day more than 15 days after the filing of the petition filed under this chapter, the petition under this chapter shall be set for hearing at the same time as the petition for probate of the will or for administration of the estate, and notice of hearing on the petition filed under this chapter shall be given by the petitioner as provided in Section 1220. If the hearing of the petition for probate of the will or for administration of the estate is not set for hearing for a day more than 15 days after the filing of the petition under this chapter, (1) the petition filed under this chapter shall be set for hearing at least 15 days after the date on which it is filed, (2) notice of the hearing on the petition filed under this chapter shall be given by the petitioner as provided in Section 1220, and (3) if the petition for probate of the will or for administration of the estate has not already been heard, that petition shall be continued until that date and heard at the same time unless the court otherwise orders.

(Enacted by Stats. 1990, Ch. 79.)

6608.
  

If a petition is filed under this chapter, the personal representative, or the petitioner if no personal representative has been appointed, shall file with the clerk of the court, prior to the hearing of the petition, an inventory and appraisal made as provided in Part 3 (commencing with Section 8800) of Division 7. The personal representative or the petitioner, as the case may be, may appraise the assets which a personal representative could appraise under Section 8901.

(Enacted by Stats. 1990, Ch. 79.)

6609.
  

(a) If the court determines that the net value of the decedent’s estate, over and above all liens and encumbrances at the date of death of the decedent and over and above the value of any probate homestead interest set apart out of the decedent’s estate under Section 6520, does not exceed twenty thousand dollars ($20,000) as of the date of the decedent’s death, the court shall make an order under this section unless the court determines that making an order under this section would be inequitable under the circumstances of the particular case.

(b) In determining whether to make an order under this section, the court shall consider the needs of the surviving spouse and minor children, the liens and encumbrances on the property of the decedent’s estate, the claims of creditors, the needs of the heirs or devisees of the decedent, the intent of the decedent with respect to the property in the estate and the estate plan of the decedent as expressed in inter vivos and testamentary transfers or by other means, and any other relevant considerations. If the surviving spouse has remarried at the time the petition is heard, it shall be presumed that the needs of the surviving spouse do not justify the setting aside of the small estate, or any portion thereof, to the surviving spouse. This presumption is a presumption affecting the burden of proof.

(c) Subject to subdivision (d), if the court makes an order under this section, the court shall assign the whole of the decedent’s estate, subject to all liens and encumbrances on property in the estate at the date of the decedent’s death, to the surviving spouse and the minor children of the decedent, or any one or more of them.

(d) If there are any liabilities for expenses of the last illness, funeral charges, or expenses of administration that are unpaid at the time the court makes an order under this section, the court shall make such orders as are necessary so that those unpaid liabilities are paid.

(e) Title to property in the decedent’s estate vests absolutely in the surviving spouse, minor children, or any or all of them, as provided in the order, subject to all liens and encumbrances on property in the estate at the date of the decedent’s death, and there shall be no further proceedings in the administration of the decedent’s estate unless additional property in the decedent’s estate is discovered.

(Enacted by Stats. 1990, Ch. 79.)

6610.
  

Upon becoming final, an order under Section 6609 shall be conclusive on all persons, whether or not they are then in being.

(Enacted by Stats. 1990, Ch. 79.)

6611.
  

(a) Subject to the limitations and conditions specified in this section, the person or persons in whom title vested pursuant to Section 6609 are personally liable for the unsecured debts of the decedent.

(b) The personal liability of a person under this section does not exceed the fair market value at the date of the decedent’s death of the property title to which vested in that person pursuant to Section 6609, less the total of all of the following:

(1) The amount of any liens and encumbrances on that property.

(2) The value of any probate homestead interest set apart under Section 6520 out of that property.

(3) The value of any other property set aside under Section 6510 out of that property.

(c) In any action or proceeding based upon an unsecured debt of the decedent, the surviving spouse of the decedent, the child or children of the decedent, or the guardian of the minor child or children of the decedent, may assert any defense, cross-complaint, or setoff which would have been available to the decedent if the decedent had not died.

(d) If proceedings are commenced in this state for the administration of the estate of the decedent and the time for filing claims has commenced, any action upon the personal liability of a person under this section is barred to the same extent as provided for claims under Part 4 (commencing with Section 9000) of Division 7, except as to the following:

(1) Creditors who commence judicial proceedings for the enforcement of the debt and serve the person liable under this section with the complaint therein prior to the expiration of the time for filing claims.

(2) Creditors who have or who secure an acknowledgment in writing of the person liable under this section that that person is liable for the debts.

(3) Creditors who file a timely claim in the proceedings for the administration of the estate of the decedent.

(e) Section 366.2 of the Code of Civil Procedure applies in an action under this section.

(Amended by Stats. 1992, Ch. 178, Sec. 32. Effective January 1, 1993.)

6612.
  

If a petition filed under this chapter is filed with a petition for the probate of the decedent’s will or for administration of the estate of the decedent and the court determines not to make an order under Section 6609, the court shall act on the petition for probate of the decedent’s will or for administration of the estate of the decedent in the same manner as if no petition had been filed under this chapter, and the estate shall then be administered in the same manner as if no petition had been filed under this chapter.

(Enacted by Stats. 1990, Ch. 79.)

6613.
  

The attorney’s fees for services performed in connection with the filing of a petition and the obtaining of a court order under this chapter shall be determined by private agreement between the attorney and the client and are not subject to approval by the court. If there is no agreement between the attorney and the client concerning the attorney’s fees for services performed in connection with the filing of a petition and obtaining of a court order under this chapter and there is a dispute concerning the reasonableness of the attorney’s fees for those services, a petition may be filed with the court in the same proceeding requesting that the court determine the reasonableness of the attorney’s fees for those services. If there is an agreement between the attorney and the client concerning the attorney’s fees for services performed in connection with the filing of a petition and obtaining a court order under this chapter and there is a dispute concerning the meaning of the agreement, a petition may be filed with the court in the same proceeding requesting that the court determine the dispute.

(Enacted by Stats. 1990, Ch. 79.)

6614.
  

Sections 6600 to 6613, inclusive, do not apply if the decedent died before July 1, 1987. If the decedent died before July 1, 1987, the case continues to be governed by the law applicable to the case prior to July 1, 1987.

(Enacted by Stats. 1990, Ch. 79.)

6615.
  

A reference in any statute of this state or in a written instrument, including a will or trust, to a provision of former Sections 640 to 647.5, inclusive, repealed by Chapter 783 of the Statutes of 1986, shall be deemed to be a reference to the comparable provisions of this chapter.

(Enacted by Stats. 1990, Ch. 79.)

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